Dukes
Bridge LLC, a plaintiff in this action for breach of
contract, appeals the district court's grant of summary
judgment to defendant Gilbert D. Beinhocker. We reverse and
remand.

I.

The
maze of detail in this transaction is lucidly organized in
the district court's opinion, but a limited recitation of
facts suffices for purposes of the appeal. Beinhocker entered
into the contract in question as one element of a transaction
to raise capital for his flailing business and income for
himself. The dealings among the parties involved
Beinhocker's purchase of a multi-million dollar life
insurance policy on his own life, to be held in trust for the
two years during which the insurer could contest the
representation in his policy application, then sold by the
insurance broker to a third party for a profit to Beinhocker,
among others. As he lacked the wherewithal to pay the policy
premiums prior to the anticipated sale, he obtained financing
from a lender, Aqua Blue Wealth Management, LLC, Dukes
Bridge's predecessor in interest.

The
several documents structuring the transaction included a
"Specialty Finance Loan Agreement, " providing that
the lender would pay two years of the life insurance
policy's premiums. A trust was formed with
Beinhocker's business partner, Leonard Phillips, as
trustee, and a sub-trust, whose trustee was the plaintiff
Stanley Miller. The actual borrower under the Loan Agreement
was the sub-trust, which held the life policy as collateral
for the lender's protection.

As it
concerns this appeal, the Loan Agreement included a
non-recourse provision, that in case of default the
obligations to the lender under the agreement could be
satisfied only from the collateral policy.[1] It expressly
protected Beinhocker:

Notwithstanding any other provision of this Specialty Finance
Loan Agreement or any other Loan Documents, Lender agrees
that under these Loan Documents there are not any
circumstances, including but not limited to the recourse
obligations of the Borrower [Sub-Trust], under which . . .
Beinhocker will personally be responsible for any obligations
owed to the Lender . . . or the Insured's
[Beinhocker's] assets will be subject to any claims,
liens or judgments of the Lender or any affiliates of the
Lender.

The
same day the Loan Agreement was executed, Beinhocker,
Phillips, and Miller entered into a "Non-Contravention
Agreement, " with the stated purpose of
"induc[ing]" the lender to "enter into the
Loan Agreement." The Non-Contravention Agreement
provided that Beinhocker would not "contravene or take
any action that will cause an event of default under the
Specialty Finance Loan Agreement or any other contract,
understanding, or commitment described in the Loan
Documents." Beinhocker would not "pledge, assign .
. ., or otherwise dispose of, or encumber with any Lien, the
[life insurance policy] without the prior, written consent of
[Miller]." Nor would Beinhocker "make any
withdrawals from or obtain any policy loans against the"
policy without Miller's consent. Beinhocker agreed to
hold the lender "harmless" against, and to
"reimburse" it for, "any and all loss,
liability, or damage resulting from any breach or
nonfulfillment" of the Non-Contravention Agreement by
Beinhocker, and for any "assessments, judgments,
out-of-pocket costs and expenses, including without
limitation, legal fees and expenses incident to" such
breach.

With
these agreements in place, the original lender paid the
first-year premium on the life insurance policy, as well as
part of the second year's. Before the lender completed
the second-year payments, however, Beinhocker became nervous.
He worried that his insurance broker would have difficulty
finding a buyer for the policy, and would end up selling it
to "any anonymous party in Russia or Asia" who
"would have a $10 million incentive to have [him]
anonymously assassinated." To assuage his fears,
Beinhocker decided to sabotage the scheme. Unbeknownst to
Miller, he requested Phillips to take out a $200, 000 loan
against the life insurance policy, the amount they had hoped
to realize on its eventual sale. Phillips did so, with the
ultimate effect of causing the policy to lapse, dismantling
the entire arrangement.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Dukes
Bridge (which by this time had succeeded to Aqua Blue&#39;s
position under the loan contract) then brought this action
against Beinhocker, alleging that in causing the $200, 000
loan to be taken out against the life insurance policy, he
had violated the Non-Contravention Agreement, resulting in
damages to the lender.[2] Each side moved for summary judgment. The
district court found there was no question about
Beinhocker's breach of the Non-Contravention Agreement
but that he was immune from liability under the quoted
non-recourse provision in the Loan Agreement. Accordingly, it
entered ...

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